EEOC Issues Guidance Regarding The Consideration Of Criminal Records In Employment Decisions
On April 25, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued an Enforcement Guidance on employer use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964 (Title VII). The Enforcement Guidance clarifies and updates the EEOC’s longstanding policy that a categorical exclusion from employment of individuals with a criminal record raises disparate impact concerns.
The EEOC’s Enforcement Guidance comes at an important time. In the last 20 years, an increasing number of Americans, including a disproportionate number of persons from protected status groups, have had contact with the criminal justice system. As a result, more and more job applicants now have criminal records. Simultaneously, advances in technology have made accessing applicants’ criminal history oftentimes as easy as pressing a button. Given these developments, it is essential for employers to maintain proper policies for criminal record screening.
SUMMARY OF EEOC ENFORCEMENT GUIDANCE
According to the EEOC, while Title VII does not prohibit an employer from requiring applicants or employees to provide information about arrests, convictions or incarceration, it is unlawful to discriminate in employment based on race, color, national origin, religion, or sex. Having a criminal record is not listed as a protected basis under Title VII. Thus, an employer’s reliance on a criminal record to deny employment violates Title VII only when the employer’s action also constitutes discrimination based on race, color, religion, sex, or national origin.
As set forth in the Guidance, two analytic frameworks are used to determine Title VII liability for employment discrimination: Disparate Treatment and Disparate Impact.
An employer is liable for violating Title VII when it treats an employee applicant differently because of his/her race, national origin, or another protected basis. The Guidance points to an example of disparate treatment liability when an employer rejects an African American applicant based on his criminal record but hires a similarly situated White applicant with a comparable criminal record.
The EEOC points out that Title VII prohibits not only decisions that are driven by animosity toward a protected basis, but it also prohibits decisions that are influenced by stereotyped thinking. As an example, the Guidance explains that an employer is liable under Title VII if it rejects an employee applicant based on racial or ethnic stereotypes about criminality (e.g. employer believing that African American applicants all have disqualifying criminal records) rather than qualifications and suitability for the position.
The Guidance lists several types of evidence (not exclusive) that may be used to show an employer’s use of criminal records in a selection decision was motivated by a protected characteristic under Title VII: (1) Comments by the employer that are derogatory with respect to the employee applicant’s protected group or that express a group-related stereotype; (2) Inconsistencies in the hiring process where the employer requested criminal history information more often for individuals with certain protected backgrounds or gave Whites but not racial minorities the opportunity to explain their criminal history; (3) Where individuals are similarly-situated in relevant respects except for membership in the protected group and one individual is treated differently (e.g. being subjected to more or different criminal background checks); (4) Matched-pair testing that reveals candidates are being treated differently because of a protected class; and (5) Statistical evidence showing the employer counted criminal history information more heavily against members of a protected group.
An employer is also liable for violating Title VII if the plaintiff can prove that the employer’s neutral criminal record screening policy or practice has the effect of disproportionately screening out a Title VII-protected group and the employer fails to demonstrate that the policy or practice is job related for the position in question and consistent with business necessity. 42 U.S.C. § 2000e-2(k)(1)(A)(i).
According to the EEOC, the first step in disparate impact analysis is to identify the particular policy or practice that causes the unlawful disparate impact. The Guidance includes as relevant information  the following: (1) the text of the policy or practice; (2) associated documentation; (3) information about how the policy or practice was actually implemented; (4) which offenses or classes of offenses were reported to the employer; (5) whether convictions, arrests, charges, or other criminal incidents were reported; (6) how far back in time the reports reached; (7) the jobs for which the criminal background screening was conducted; and (8) training or guidance documents used by the employer.
In determining disparate impact, the EEOC may find that criminal record exclusions have a disparate impact on a protected group based on national data showing disproportionate arrest and incarceration rates for such groups as compared to the general population. The EEOC will also consider (1) applicant flow information; (2) workforce data; (3) criminal history background check data; (4) demographic availability statistics; (5) incarceration/conviction data; (6) and/or relevant labor market statistics.
The EEOC will also assess the probative value of an employer’s applicant data, which may not adequately reflect the actual potential applicant pool since otherwise qualified people might be discouraged from applying due to an alleged discriminatory policy or practice. To assess this data, the EEOC will closely examine whether an employer has a reputation in the community for excluding individuals with criminal records, which may be determined from ex-offender employment programs, individual testimony, employer statements, evidence of employer recruitment practices, or publicly posted notices.
During an EEOC investigation, the EEOC allows an employer an opportunity to prove that its policy or practice does not cause a disparate impact on the protected group(s) (e.g. regional/local data showing that African American and/or Hispanic men are not arrested or convicted at disproportionately higher rates in the employer’s particular geographic area). However, the EEOC also stresses that an employer’s evidence of a racially balanced workforce is not enough to disprove disparate impact. The issue, according to the EEOC, is whether the policy or practice, despite a racially balanced workforce, deprives a disproportionate number of Title VII-protected individuals of employment opportunities.
Job Related For the Position In Question and Consistent with Business Necessity
After an employee establishes disparate impact, the employer has the burden to “demonstrate  that the challenged practice is job related for the position in question and consistent with business necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(i). In other words, the Guidance explains that the employer has the burden of showing that the policy or practice is one that “bear[s] a demonstrable relationship to successful performance of the jobs for which it was used” and “measures the person for the job and not the person in the abstract.” Griggs v. Duke Power Co. (1971) 401 U.S. 424, 431 & 436.
In practical terms, to prove a policy or practice is job related and consistent with business necessity, the EEOC requires that the employer must show its policy or practice operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position (as opposed to an automatic, across-the-board exclusion from all employment opportunities because of any criminal conduct). The EEOC believes two circumstances allow an employer to consistently meet this defense. These are set forth in the Guidance.
First, the employer can validate its criminal conduct screening for a particular position by complying with the Uniform Guidelines on Employee Selection Procedures (“Uniform Guidelines”) standards. The guidelines describe three different approaches to validating employment screens. However, the EEOC points out that the guidelines also recognize that “[t]here are circumstances in which a user cannot or need not utilize” formal validation techniques and that in such circumstances an employer “should utilize selection procedures which are as job related as possible and which will minimize or eliminate adverse impact as set forth [in the following subsections]. 29 C.F.R. § 1607.6B.
Second, the employer can develop a targeted screening procedure that considers, at the very least, the nature and gravity of the crime, the time elapsed since the offense, conduct, and/or completion of the sentence, and the nature of the job held or sought. Green v. Mo. Pac. R.R. (8th Cir. 1977) 549 F.2d 1158, 1160. Such a screen needs to be narrowly tailored to identify criminal conduct that has a demonstrably tight nexus to the position in question. If the individual is screened out, he/she should be notified of being screened out due to a criminal conviction; be provided with an opportunity to show that the exclusion should not be applied due to his/her particular circumstances; and the employer should then consider whether the additional information provided by the individual justifies an exception to the exclusion and shows that the employer’s policy or procedure as applied is not job related and consistent with business necessity. If the individual does not respond to the employer’s attempt to gather additional information about his/her background, the employer may make its employment decision without the information.
The EEOC has found that although an arrest does not establish or prove that criminal conduct has occurred, an employer often uses the conduct underlying an arrest as justification for adverse employment action. As Title VII calls for a fact-based analysis to determine if an exclusionary policy or practice is job related and consistent with business necessity, the EEOC believes that an arrest may trigger an inquiry into whether the conduct underlying the arrest justifies an adverse employment action. An exclusion based on an arrest, in itself, is not job related and consistent with business necessity.
According to the EEOC, another reason employers should not rely on arrest records is because the final disposition of the arrest may not be reported, the records may include inaccuracies, or an arrest may continue to be reported even if expunged or sealed. However, the EEOC stresses that even if an arrest record standing alone cannot be used to deny an employment opportunity, an employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question. The EEOC explains that the conduct, not the arrest, is relevant to the particular job at issue and the exclusion is made based on descriptions of the underlying conduct, not the fact of the arrest.
By contrast, the EEOC finds that a record of a conviction usually serves as sufficient evidence that a person engaged in particular conduct. However, the Guidance also points out that evidence may exist showing an error in the record, an outdated record, or another reason for not relying on the evidence of a conviction (e.g. the record was expunged or a felony was later downgraded to a misdemeanor). As a best practice, the EEOC recommends that employers not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.
Less Discriminatory Alternatives
The EEOC warns that even if an employer successfully shows that its policy or practice is job-related for the position in question and consistent with business necessity, a plaintiff may still prevail by proving that there exists a less discriminatory “alternative employment practice” that serves the employer’s legitimate goals as effectively as the challenged practice but that the employer refused to adopt. 42 U.S.C. §2000e-2(k)(1)(A)(i)-(ii).
Positions Subject to State & Local Prohibitions or Restrictions on Individuals with Records of Certain Criminal Conduct
State and local laws and/or regulations may restrict or prohibit the employment of individuals with records of certain criminal conduct. However, the Guidance points out that unlike federal laws or regulations, state and local laws or regulations are preempted by Title VII if they “purport to require or permit the doing of any act which would be an unlawful employment practice” under Title VII. 42 U.S.C. § 2000e-7. Thus, if an employer’s exclusionary policy or practice is not job related and consistent with business necessity, the fact that it was adopted to comply with a state or local law or regulation does not shield the employer from Title VII liability.
Employer Best Practices
The EEOC recommends the use of the following practices by employers:
1. Eliminate policies or practices that exclude people from employment based on any criminal record.
2. Train managers, hiring officials, and decision makers about Title VII and its prohibition on employment discrimination.
3. Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
A. Identify essential job requirements and the actual circumstances under which the jobs are performed.
B. Determine the specific offenses that may demonstrate unfitness for performing such jobs.
C. Determine the duration of exclusions for criminal conduct based on all available evidence.
D. Record the justification for the policy and procedures.
E. Note and keep a record of consultations and research considered in crafting the policy and procedures.
4. Train managers, hiring officials, and decision makers on how to implement the policy and procedures consistent with Title VII.
5. When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
6. Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.
A copy of the EEOC’s Enforcement Guidance is available here.
Please be advised that on May 9, 2012, the U.S. House of Representatives passed by voice vote an amendment prohibiting the use of funds to “implement, administer, or enforce” the EEOC’s Enforcement Guidance. It remains to be seen what effect, if any, this amendment will have on the EEOC’s application of the Enforcement Guidance. However, to the extent that the Enforcement Guidance clarifies existing law, the Guidance remains a useful tool to understand the rights and limitations of an employer’s use of criminal background information.
 The EEOC presumes that employers use the information sought and obtained from its applicants and others in making an employment decision. If an employer asserts that it did not use such information in reaching its decision, the EEOC will seek evidence to prove this assertion.
 “Demonstrates” is defined as “meets the burdens of production and persuasion.” 42 U.S.C. § 2000e(m).
 The Uniform Guidelines standards provide that “[employers] should maintain and have available…information on [the] adverse impact of [their employment selection procedures].” 29 C.F.R. § 1607.15A. “Where [an employer] has not maintained [such records, the EEOC] may draw an inference of adverse impact of the selection process from the failure of [the employer] to maintain such data…” Id. § 1607.4D.
 The additional information can consist of: (1) inaccurate criminal record; (2) the facts and circumstances surrounding the offense or conduct; (3) the number of offenses for which the individual was convicted; (3) older age at the time of conviction, or release from prison; (4) evidence that the individual performed the same type of work, post-conviction, with the same or a different employer, with no known incidents of criminal conduct; (5) the length and consistency of employment history before and after the offense or conduct; (6) rehabilitation efforts (e.g. education/training); (7) employment or character references and any other information regarding fitness for the particular position; and (8) whether the individual is bonded under a federal, state, or local bonding program.